Decoupage using Napkins

'Is it legal', 'can I do this' type questions and discussions.
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Westcliff
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Decoupage using Napkins

Post by Westcliff »

Hi,
Apologies if this has already been covered but I couldn’t explicitly find an answer...

I would like to use some floral and pretty patterned napkins to decoupage onto some sea shells and then sell the finished item online.

I have bought the napkins and see on the back of the packet that someone holds copyright of the pattern.

Now, I’ve seen a number of people doing similar decoupage items for sale (e.g. decoupage of napkins onto wooden spoons and drinks coasters in patterns from other designers that would be copyrighted e.g. patterns by Emma Bridgewater etc and selling on eBay, Etsy etc) but don’t know whether doing something like this is legal or an infringement of copyright?

1. Can you decoupage items using bought patterned napkins and then sell those items?
2. And if you do, can you refer to the pattern or designer’s name being used when describing the item for sale?
3. Before doing so, would you need to seek permission from the copyright holder or artist? (in my instance the person that made the pattern would have died many years ago so it would not be possible to ask them, unless they have an estate I guess??).
4. Or is no permission needed for this type of crafting with the intent to sell?

The method of decoupaging doesn’t degrade the substance the pattern is upon (I.e. the paper serviette) but simply adheres it with glue and then is varnished over the top.

Many thanks In advance for any replies shedding light on what is and isn’t allowed.

Also I’m based in the UK and am only looking to sell in the UK for now, if that should affect the answer?
xx
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AndyJ
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Re: Decoupage using Napkins

Post by AndyJ »

Hi Westcliff,

There shouldn't be any infringement of copyright because you are not copying anything and the doctrine of exhaustion of rights should apply to you re-distributing something that you have bought. I think the only potential risk lies in damage to the artist's moral right not to have her work treated in a derogatory fashion, but since the designs are currently on napkins I don't really think that applying them to some sea shells somehow treats them in a way which is less respectful. If anything, it elevates them into ornaments which people will keep, rather than napkins which once used will be thrown away.

You mentioned the fact that the substrate which the designs are printed on would remain intact during the process of decoupage. I assume therefore that you are aware of a copyright case from a few years back called Art&Allposters where the Court of Justice of the European Union found that replacing the original backing material during the transfer process meant that the work was, in effect, being copied rather than just being re-utilised and hence the exhaustion of rights principle did not apply. This was always a rather strained interpretation of the law, but in any case tit doesn't apply in your case.

If you want to sell these items with a reference to the artist, then you should include a disclaimer that these are not items produced by her or with her permission. If you don't, there is the possibility that you could infringe her company's trade marks and as trade mark law has a slightly different approach to the exhaustion of rights doctrine, you might be found liable. Here's what the European Trade Mark directive says on the subject:
Exhaustion of the rights conferred by a trade mark [...] shall not apply where there exist legitimate reasons for the proprietor to oppose further commercialisation of the goods, especially where the condition of the goods is changed or impaired after they have been put on the market.
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Westcliff
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Re: Decoupage using Napkins

Post by Westcliff »

Thanks AndyJ for posting such a helpful reply.

Do you think that as long as I state that my items are hand crafted by me and, have in no way, been made in association with the designer/artist or any company, society or institution that is affiliated with the artist be sufficient to enable me to mention the artist when selling my items?

I’ve looked up the individual in question at the link you posted and his name isn’t trademarked like Emma Bridgewater’s is, however there are a number of entities that have and do use his name as part of their name or branding, including a museum (as they lived over a century ago).
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Re: Decoupage using Napkins

Post by AndyJ »

Hi again Westcliff,

If the artist(s) whose designs/artwork you want to use died over 70 years ago, there will definitely be no infringement of copyright, and it is unlikely that there is any current registered trade mark associated with their names, so you can use their names as descriptors, eg 'seashell incorporating an Aubrey Beardsley print design'.
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helenrdarrow
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Re: Decoupage using Napkins

Post by helenrdarrow »

Once you learn to decoupage with napkins, you're going to be hooked! ... Place Mod Podge on the surface of the item and then place the napkin (or portion of napkin design) down on top. Use a piece of plastic wrap on top to smooth the image. This will help you smooth the napkin down without tearing.
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Westcliff
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Re: Decoupage using Napkins

Post by Westcliff »

Thanks again AndyJ for your thoughts and assistance and helenrdarrow thanks for the tip :)
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Re: Decoupage using Napkins

Post by IdontThinkSo »

Hello
I just joined this forum because I feel it very important to correct some spectacularly wrong information which has been given out here.
If I am an artist and my images appear on napkins, that does not mean that those napkins can be repurposed by people who are doing decoupage for commercial gain.

As soon as my image appears on another item, whether that be via decoupage or any other transfer method, if there is no license in place for the person to sell those types of items with my images on, there is a breach of copyright.

So if someone uses napkins to decorate coasters and sell them, that person needs to have a license from me to sell coasters with my images on. That license will define the usage, the territory that the item can be sold within and the time period. There is no 'fair usage' rights, 'second usage doctrine' or any other such nonsense. Its straightforward breach of copyright.

Decoupagers are free to use napkins as much as they like for non profit usage, but as soon as they offer them commercially they need to either be using public domain images, or they need to purchase licenses from the creators of the designs.
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Re: Decoupage using Napkins

Post by AndyJ »

Hi IdontThinkSo,

Welcome to the forums.

Can you point to some evidence to support your assertion? While you might think that 'fair usage' rights and 'second usage doctrine' [sic] are nonsense, they are in fact legal principles and I provided links to back that up.

The only case which goes some way to supporting your view is the Art & Allposters decision of the Court of Justice of the European Union which I mentioned. This was a fairly unique decision, based on the specific facts of that case, in which the court looked at the almost metaphysical distinction between the artistic work itself and the substrate which carried the image, effectively treating them as inseparable. Under normal circumstances, destroying the substrate of a work would also mean the destruction of the image as without it there would be nothing to carry the lines and pigment which comprise the image. However where decoupage is concerned the part of the substrate which carries the image is not separated from the artwork on it, merely separated from the surrounding parts of the original image, which are quite often blank space or areas of no real interest. If you can point us to another court case which which specifically addresses the decoupage issue, then that would certainly improve your argument.

As I mentioned in my earlier reply to Westcliff, there is no copying involved in what he or she proposed. In order to make the decoupaged sea shells and sell them in commercial quantities, he or she would first need to purchase sufficient napkins for the purpose. The manufacturer of the napkins (and hence the artist if they were receiving royalties) would thus not be out of pocket in the same way as would be the case if the decoupager merely bought one napkin and photocopied it 20 times. That of course would be infringement.

The gist of your argument seems to be that if someone sells you something which is subject to copyright at a certain price, you, the buyer, cannot under any circumstances resell that item for a profit without getting a new licence. You have only to look at how wholesale and retail trade works to see that that does not hold water. If I buy 100 copies of a poster of a painting by my favourite artist for £1 each, it would be perfectly legal to sell them on for £1.50 each, and my business venture would only be limited by the fact that astute buyers would know they too could get the poster for £1, so why pay me extra for the same thing? In the case Westcliff was talking about, the decorated sea shells would have added value based on the decoupage and so if people wanted them, he or she would be fairly entitled to ask a higher price than applied to the individual napkins.
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